What lower-court judges think of Supreme Court's emergency orders
Sixty-five judges responded to a New York Times questionnaire sent to hundreds of federal judges across the United States. Of those, 47 said the Supreme Court has been mishandling its emergency docket (also referred to as the “shadow docket”) since Donald Trump returned to office.
The emergency orders are technically temporary, but they’ve had broad practical effects, allowing the Trump administration to deport tens of thousands of people, discharge transgender military service members, fire thousands of government workers and slash federal spending, the Times says.
The Supreme Court so far has issued emergency orders in about 20 cases involving the Trump administration’s policies; in at least seven of them, the majority offered no reasoning for its decision.
The judges responded to the questionnaire and were interviewed on the condition of anonymity so they could share their views candidly, as lower court judges are governed by a complicated set of rules that include limitations on their public statements, the Times says.
Of the judges who responded, 28 were nominated by Republican presidents, including 10 by Trump. Thirty-seven were nominated by Democrats. Judges nominated by Democrats were more critical of the Supreme Court, but judges nominated by presidents of both parties expressed concerns, the Times says.
In interviews, federal judges said the Supreme Court’s emergency orders were “mystical,” “overly blunt,” “incredibly demoralizing and troubling” and “a slap in the face to the district courts.” One judge described their district’s relationship with the Supreme Court as “a war zone.” Another said the courts were in a “judicial crisis.”
It’s “of surpassing historic significance” that so many sitting judges have chosen to weigh in publicly about the Supreme Court, says J. Michael Luttig, a former federal judge who was an assistant attorney general under President George H.W. Bush.
Luttig is a critic of the Trump administration’s interpretation of the Constitution who’s in frequent contact with sitting judges from across the political spectrum. He says he believes the views expressed to the Times are broadly representative of the lower courts as a whole.
“I can’t think of words to capture the significance that federal judges themselves have to speak out because the Supreme Court has given them no choice but to speak out,” Luttig says.
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